Normally, lawyers presenting arguments to a court focus on facts, legal sources, and legal precedent. Virginia Attorney General Ken Cuccinelli prefers a different tactic. In an often-incoherent brief attacking the Affordable Care Act, Cuccinelli argues that a 236 year-old colonial boycott of British products somehow renders the new health care law unconstitutional:

[A]ll of the taxes except those on tea were repealed leading to the Boston Tea Party, the Intolerable Acts, and the First Continental Congress. Throughout the period from the Stamp Act forward, Americans responded with non-importation and non-consumption agreements. … In light of this experience, the founding generation would have regarded as preposterous any suggestion that Great Britain could have solved its colonial problems by commanding Americans to purchase tea under the generally conceded power of parliament to regulate commerce.

This argument is hardly a model of clarity, but Cuccinelli appears to be arguing that, because American colonists protested British taxes by boycotting British products, it somehow follows that the Founders would not allow Congress to pass a law which would prevent modern-day Americans from boycotting health insurance. Cuccinelli, however, needs a history lesson. The Founders did not boycott British products because believed in boycotts for their own sake; they did so because they were protesting “taxation without representation.”

The British Parliament taxed various imports, including tea, despite the fact that American colonists had no elected representatives in Parliament. Had Cuccinelli read a grade-school history textbook, he would have learned that the Founders’ boycott was largely a demand that the power to tax rest with democratically-elected officials — a requirement that the Framers wrote into the Constitution by requiring that “[a]ll bills for raising revenue shall originate in the House of Representatives.”

Unlike colonial-era tea taxes, the Affordable Care Act was passed by a democratically-elected Congress and signed into law by a democratically-elected President. Cuccinelli, however, now wants an unelected judge to strike down this law despite no basis in the Constitution for doing so.

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